Regulatory Law: Can It Override Constitutional Rights?

The notion that constitutional rights are absolute is false. Constitutional rights can be restricted or taken away, and this is a complex area of law. The US Supreme Court has, on occasion, restricted or rolled back certain rights, such as in the case of Lochner v. New York, which interfered with the right to contract. The Court has also limited the scope of economic rights under the 14th Amendment and ruled that religious exemptions do not apply to generally applicable laws. Individual rights, such as freedom of speech, freedom of religion, and the right to bear arms, can be restricted by regulatory laws if the government has a compelling interest to protect and if the restriction is fairly and narrowly defined. For example, child pornography is illegal because the state's interest in protecting children from exploitation outweighs freedom of speech.

The right to bear arms

> "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The US Supreme Court has ruled that the Second Amendment right to bear arms applies to individuals, not just militias or armies, but this right is not unlimited. This means that regulatory laws can indeed restrict the right to bear arms, and many federal and state laws regulate what types of firearms citizens may possess.

The individual right theory interprets the Second Amendment as creating an individual constitutional right to possess firearms, with legislative bodies restricted from prohibiting firearm possession. However, this interpretation is not universally accepted, and the collective rights theory argues that citizens do not have an individual right to possess guns, and legislative bodies therefore have the authority to regulate firearms.

Despite the ongoing debate, it is clear that the right to bear arms can be taken away in certain circumstances. For example, convicted felons, individuals under 21 years of age, those who have renounced their US citizenship, and veterans dishonorably discharged from the military may permanently lose their right to own and use a gun. Additionally, individuals convicted of unlawful possession, use, or purchase of a firearm may face serious consequences, including the permanent loss of their rights to possess a firearm in the future.

Freedom of speech

However, it is important to note that freedom of speech is not absolute. While the First Amendment protects speech even when the ideas put forth are illogical, offensive, immoral, or hateful, there are certain limitations and exceptions to these protections. For example, universities can restrict speech that defames a specific individual, constitutes a genuine threat or harassment, or is intended and likely to provoke imminent unlawful action or otherwise break the law. Additionally, the government has a recognized role in regulating speech that does not violate the First Amendment, particularly when acting as an employer.

The line between protecting freedom of speech and regulating harmful or false speech has become increasingly blurred with the rise of social media and the internet. While the FCC does not currently assert authority over the content of speech online, the spread of fake news and misinformation has led to ongoing discussions about the need for regulatory changes. Different countries have different rules and laws regarding online content, and speakers may find themselves liable for harms caused by their speech, even if their home venues protect them.

To address these challenges, regulators from various nations, external entities, media speech hosts, and other stakeholders collaborate to develop and implement laws and best practices to combat the global problem of fake news. While some advocate for more stringent regulations, others argue that self-interest often prevails in content moderation decisions, and platforms have too much freedom to selectively silence certain viewpoints. As a result, reflection at the federal and state levels continues, with speculation about whether potential regulations would align with the free speech guarantee provided by the First Amendment.

Freedom of religion

Regulatory laws and constitutional rights are often at odds with each other. In the context of freedom of religion, regulatory laws can impose limitations or restrictions on certain religious practices or expressions. However, it is important to note that in many countries, freedom of religion is a fundamental right protected by the constitution. This means that any regulatory law that attempts to infringe upon this right must be carefully scrutinized to ensure it does not violate the constitution.

In the United States, the Free Exercise Clause protects the right to freely exercise one's religion without government interference. This includes the right to perform or abstain from performing certain physical acts in accordance with one's beliefs. The Supreme Court has upheld that religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit protection under the First Amendment. However, this right is not absolute, and regulatory laws can still impose limitations in certain cases.

For example, the Religious Freedom Restoration Act (RFRA) prohibits the federal government from substantially burdening a person's exercise of religion. However, if the government can demonstrate that applying this burden is the least restrictive means of achieving a compelling governmental interest, then it may be justified. Similarly, the government cannot impose regulatory burdens on some religious denominations but not others, as this would violate the principle of denominational neutrality.

Internationally, the right to freedom of religion is recognized as a fundamental human right. The Universal Declaration of Human Rights and the International Covenants on Human Rights proclaim the principles of nondiscrimination and equality before the law, which include the freedom of thought, conscience, religion, and belief. This means that regulatory laws that infringe upon these rights may be considered a violation of international human rights law.

In summary, while regulatory laws can impose limitations or restrictions on religious practices and expressions, they must do so without violating constitutional rights or international human rights law. The right to freedom of religion is a fundamental right in many countries, and any regulatory law that attempts to curtail this right must be carefully scrutinized to ensure its validity.

Right to privacy

While the US Constitution and Bill of Rights do not explicitly mention a right to privacy, federal law does recognise an individual's right to privacy. As far back as 1890, legal scholars have recognised the "right to be left alone". In 1965, the Supreme Court ruled that the Constitution protects a legal right to privacy. The Fourth Amendment of the Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures".

Privacy is a major issue in the healthcare sector, where technology is becoming an essential component. Connecting personal data to the internet makes patients vulnerable to cyberattacks, and there are concerns about how much data should be stored and who should have access to it. The Privacy Rule of the Health Insurance Portability and Accountability Act, passed in 1996, safeguards medical data and gives individuals rights over their health information. The HIPAA Privacy Rule provides a "federal floor" of privacy protection for health information, while allowing more protective state laws to continue in force.

The right to privacy is a fundamental human right firmly grounded in international law. The Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948, mentions in Article 12 that "no one shall be subjected to arbitrary interference with their privacy, family, home or correspondence, nor to attacks upon his honour and reputation".

However, American law grants almost no privacy for those in public areas. No verbal or written consent is needed to take photos or videos of those in public areas.

Since the global surveillance disclosures of 2013, the right to privacy has been a subject of international debate. Government agencies, such as the NSA, FBI, CIA, R&AW, and GCHQ, have engaged in mass, global surveillance. Some current debates around the right to privacy include whether privacy can coexist with the current capabilities of intelligence agencies to access and analyse many details of an individual's life, and whether threats of terrorism are a valid excuse to spy on the general population.

Right to a trial by jury

The right to a trial by jury is a constitutional right provided by the Sixth and Seventh Amendments. The Sixth Amendment guarantees that in all criminal prosecutions, the accused has the right to a trial by an impartial jury of the state and district in which the individual allegedly committed a crime. The Seventh Amendment states that for suits in common law, if the value in controversy exceeds twenty dollars, the right to a trial by jury shall be preserved.

The right to a jury trial has its roots in English common law, evolving in medieval England as a method to resolve disputes. Initially, jurors acted as witnesses, but over time they transitioned into a more neutral fact-finding role. The jury system was a symbol of liberty and justice in the American colonies, even before the Revolutionary War, serving as a safeguard against arbitrary or corrupt trial judges.

The Supreme Court has set legal precedent in several important decisions regarding the right to a jury trial. The Court has consistently excluded petty offenses from the guarantee of a jury trial in federal courts, drawing a distinction based on the maximum punishment or the nature of the offense. For instance, in Baldwin v. New York, the Court held that the right to a jury trial applies to all serious offenses, or crimes with a potential punishment of more than six months' imprisonment.

It is important to note that the right to a jury trial is not absolute and can be waived in certain instances, depending on the jurisdiction. In federal district courts, defendants can request to waive the jury, but the court and prosecutor must agree, and the waiver must be in writing and done knowingly and voluntarily. Additionally, the right to a jury trial does not apply in juvenile proceedings or cases seeking equitable relief, such as injunctions or specific performance.

Frequently asked questions